Syllabus:

Definition of Torts

Categories and Types of Torts

• Negligence
• Trespass
• Nuisance (Rylands v. Fletcher)
• Defamation

Negligence

• Steps to negligence action
• Professional standard of care
• Duty to warn (of impending danger)
• Professional liability – negligent misstatement
  • To clients
  • To third parties
  • Disclaimers

Products Liability

Managing Tort Risk in Professional Practice

Common Issues in Contract and Tort

• Concurrent liability in contract and tort
• Limitation periods
• Joint and several liability
• Vicarious liability
• Codes and standards

Tort Liability:

Tort liability refers to a legal obligation that arises when an individual’s actions (or omissions) result in harm or damage to another person or their property. This is based on negligence, where a party’s failure to exercise reasonable care causes injury to another party. Importantly, tort liability can exist alongside contract liability when both negligence and breach of contract occur.

Definition of Tort Liability:

Tort liability involves harm caused by negligent or wrongful actions outside the scope of a contract. Unlike breach of contract, tort law doesn’t require an agreement between parties. A person may be liable for tort if their actions cause harm, regardless of whether or not they had a contractual relationship with the injured party. In situations where both negligence and breach of contract occur simultaneously, a party could face liability under both tort law and contract law.

Concurrent Liability in Tort and Agreement:

Sometimes, a party’s actions can simultaneously violate both a contractual agreement and the duty of care owed under tort law. This means that the party could be liable for both breach of contract and negligence.

Duty of Care:

Duty of care is a fundamental concept in tort law. It refers to the legal obligation that one party owes to another to avoid causing harm. In engineering, for example, an engineer has a duty to design, construct, or supervise in a way that prevents foreseeable harm to the public, workers, or property. This duty exists when it is foreseeable that failure to exercise proper care would result in injury to someone.

In simple terms, the duty of care requires that an engineer (or any professional) takes the appropriate precautions to ensure their actions or omissions do not cause harm to others. The duty of care can be breached when a reasonable person would have acted differently to avoid harm.

Reasonable Care:

Reasonable care is the level of caution and concern an ordinary, prudent individual would exercise in similar circumstances to prevent foreseeable harm to others. The concept of reasonable care is subjective and depends on the specific situation. In the context of engineering, reasonable care requires engineers to apply their knowledge, skill, and judgment to avoid errors that could lead to harm or damages.

For example, an engineer who designs a bridge must consider all relevant factors (such as the weight the bridge will support, environmental conditions, and construction materials) to ensure it is safe. Failing to account for these factors could lead to the collapse of the bridge, causing harm to others.

Engineer’s Standard of Care:

The standard of care in engineering refers to the level of competence and diligence that is expected of engineers in their professional work. Engineers are expected to apply their knowledge and expertise with ordinary competence. This standard is designed to ensure that engineers perform their duties to prevent harm to the public, workers, and property.

In Ontario, engineers who provide design services must either have liability insurance or disclose to the client that they do not have such insurance. The client must acknowledge this disclosure. The presence of insurance ensures that the engineer can compensate for damages caused by negligence or errors.

Criteria for Tort Compensation:

To seek compensation under tort law, a plaintiff must prove the following:

• Duty of Care: The defendant (the engineer or professional) owed a duty of care to the plaintiff.
• Breach of Duty: The defendant breached their duty by failing to meet the standard of care expected in that situation.
• Causation: The defendant’s breach of duty directly caused harm or damage to the plaintiff.

Tort liability does not apply if the engineer’s actions, even if negligent, did not result in a breach of the standard of care or if the damages are too remote.

Negligence and Mistake Difference:

Negligence is when an engineer fails to act with reasonable care, while a mistake is an error in judgment or understanding, which may not necessarily be a result of negligence.

Negligence occurs when an engineer fails to apply the level of skill and diligence that a reasonable professional would in similar circumstances. This failure leads to harm or damage.

Mistake, on the other hand, refers to a misunderstanding or incorrect judgment. While a mistake may be a result of carelessness, it may not always be considered negligence unless it causes harm.

Professional Misconduct:

Professional misconduct involves failing to uphold the standards of practice expected in a profession. This includes both negligence and intentional actions that harm others. Engineers may be charged with misconduct if they do not meet the required standard of care or if they knowingly make errors in their work without proper disclosure or safeguards.

Negligence can be considered misconduct if it results from an engineer's failure to meet the professional standards expected of them. If an engineer is aware that their work will be relied upon by others (e.g., contractors, clients), they must ensure that their work meets the required standards, and any errors should be corrected or disclosed.

Important Cases for Tort Law:

• Donoghue v. Stevenson (1932): This case established the modern concept of negligence. The defendant (the beer manufacturer) was found liable even though no contract existed between them and the plaintiff. The plaintiff became ill after consuming a ginger beer that contained a decomposed snail. The court ruled that the manufacturer had a duty of care toward the consumer, even though there was no direct contract.
• Hedley Byrne v. Heller (1964): In this case, the court ruled that a bank had a duty of care toward a client who relied on the bank’s advice about the creditworthiness of a third party. The bank’s failure to exercise reasonable care in providing this advice led to financial loss, and the court found the bank liable for negligence.
• Noranda Metal Industries v. Wolverine Tube (Canada): In this case, an environmental consultant included a disclaimer in a report stating that the report was not valid for third-party use. The court upheld the disclaimer, dismissing Noranda’s claim because the consultant had made it clear that the report was not for third-party use.
• Manitoba’s Queens Beach v. Trident Construction Ltd. v. Wardrop & Assoc.: This case involved an engineer’s negligent design of a sewage disposal plant, resulting in a lawsuit. Despite no direct contractual relationship with the contractor, the engineer was held liable for negligence.
• Brown & Hudson Ltd v. the Corporation of the City of York: A consulting engineer failed to mention water-related issues in a soil report, leading to a contractor bidding on the wrong assumption that no water problems existed. The court found the engineer negligent, even though there was a clause in the contract specifying the contractor should verify site conditions.
• Farm Concrete Products and Eckerlea Acres Ltd: An engineer was held liable for negligent advice regarding a design for a barn, even though the contractor did not formally consult the engineer. This case highlights the importance of clear disclaimers and professional responsibility.
• Hospital Laundry Services v. William Kelly Holdings: In this case, a mechanical engineer was found negligent for failing to design a proper cooling system, even though they were a subcontractor. This case emphasizes the duty of care owed by engineers to their clients, even in subcontracted roles.

Strict Liability:

Strict liability holds a party accountable for damages even if they were not negligent or at fault.

• Worker's Compensation: In cases where an employee is injured due to negligence, employers are required to provide compensation under worker's compensation legislation.
• Product Liability: In the U.S., manufacturers are often held strictly liable for injuries caused by their products. In Canada, however, plaintiffs must prove that the defect directly caused the harm. Manufacturers may argue that they could not have foreseen the defect using current technology.

Vicarious Liability (Deep Pocket Theory):

Vicarious liability is a legal doctrine that holds employers liable for the actions of their employees, especially if the employee's actions cause harm to others during their employment.

• Employer’s Responsibility: Employers are typically held vicariously liable for their employees' actions because they are in a better financial position to compensate for damages.
• Employee’s Responsibility: In some cases, the employer and employee may be held jointly liable. For example, if an employee fails to meet their duty of care and causes harm, both the employee and employer can be held responsible.

Concurrent Tortfeasors:

Concurrent tortfeasors are situations where multiple parties are jointly liable for a tort. For example, an engineer and an architect may be responsible for a design flaw leading to property damage.

Product Liability:

Product liability holds manufacturers accountable for defects in their products. In Canada, plaintiffs must prove that a defect in the product directly caused the harm.

Standard of Care and Duty to Warn:

Engineers must meet the standard of care, which is the level of skill and judgment expected of a professional. They also have a duty to warn of any foreseeable risks associated with their designs.

Other Types of Torts: Defamation Tort: Slander and Libel:

Defamation is a legal term for any false statement made about a person that damages their reputation. Defamation can take two forms: slander (spoken defamation) and libel (written defamation). Both forms are civil wrongs (or torts) that can lead to legal action if another person’s false statements harm someone’s reputation.

Slander (Verbal Defamation):

Slander refers to defamatory statements made verbally to another person. This type of defamation occurs when a person speaks or broadcasts something false about someone that harms their reputation or causes them damage. Examples include false accusations of criminal activity, unethical behavior, or personal failings.

• Key elements of slander include:
  • A false and defamatory statement is made about the plaintiff.
  • The statement is made to a third party, not just the plaintiff.
  • The statement causes harm to the plaintiff’s reputation or financial standing.

Slander is considered a temporary form of defamation because the harm caused by spoken words can be mitigated more easily than written words. However, the person making the statement may still be liable for damages if the statement is found to be defamatory.

Libel (Written Defamation):

Libel refers to defamatory statements made in writing or in other permanent forms, such as online posts, publications, books, or social media. Written defamation tends to cause more harm than slander because it is more permanent and can be widely distributed. It can also be harder to refute because the written word persists.

• Key elements of libel include:
  • A written or published false and defamatory statement about the plaintiff.
  • The statement is communicated to a third party.
  • The statement has the potential to harm the plaintiff’s reputation or financial status.

Unlike slander, libel often does not require the plaintiff to prove actual harm (such as loss of income or business) because written defamation can be presumed to cause harm. Libel is actionable per se, meaning that simply the existence of the defamatory statement in writing can serve as a basis for legal action.

Truth as a Defense in Defamation:

For both slander and libel, truth is an absolute defense. If the statement made is true, then there is no defamation, regardless of the harm it may cause. A defendant can argue that their statement was true and therefore not defamatory, even if it caused harm to the plaintiff's reputation.

For instance, if someone publicly accuses another person of committing a crime, and that person is later shown to have committed the crime, the accused individual cannot sue for defamation because the statement was true. The key point in defamation cases is whether the statement was false.

Occupier’s Liability:

Occupier’s liability refers to the legal duty of a person who occupies or controls property to ensure the safety of those who enter the property. It is a duty of care owed to people who come onto the land, whether they are invitees, licensees, or trespassers.

Duty of Care to Guests and Business Visitors:

The primary principle of occupier's liability is that the occupier (the person in control of the property) must take reasonable steps to ensure the safety of visitors. The degree of care varies depending on the status of the visitor.

• Invitees: These are individuals who enter the property for business purposes, such as customers at a store or employees working on the premises. Occupiers owe the highest duty of care to invitees. The occupier must ensure that the property is safe, provide warnings about potential hazards, and maintain the premises properly.
• Licensees: These are people who are allowed to enter the property for non-business purposes, such as friends visiting a home. The duty of care to licensees is lower than to invitees, but the occupier is still required to warn them of known hazards or dangerous conditions.
• Trespassers: These individuals enter the property without permission. The duty of care to trespassers is minimal. Occupiers are typically only liable for injuries to trespassers if they willfully or recklessly cause harm to them.

Occupier’s Liability in Practice:

The occupier's responsibility extends to ensuring that the property is free of hazards that could cause injury to visitors. This includes maintaining the premises, repairing defects, and providing adequate warnings.

For example, a business owner has a duty to clear snow and ice from their property during the winter to prevent customers from slipping and injuring themselves. Similarly, a landlord must ensure that their building is safe and habitable for tenants.

In legal terms, the concept of “reasonableness” is central. The law will assess whether the occupier took reasonable steps to maintain safety. For example, an occupier might not be held liable for an injury caused by an unexpected hazard, such as a tree branch falling due to a sudden storm, but they would be held liable if they were negligent in repairing a broken step on a staircase.

Nuisance Tort:

Nuisance is a tort involving interference with a person's enjoyment of their land or property. The tort of nuisance arises when one party's actions significantly interfere with another party's use or enjoyment of their property. There are two main types of nuisance: private nuisance and public nuisance.

Private Nuisance:

Private nuisance involves an interference with an individual’s use or enjoyment of their property. The interference must be substantial and unreasonable, meaning that the inconvenience caused must be significant enough to warrant legal action.

Examples of private nuisance include:

• Noise: Excessive noise from a neighboring property, such as loud music or industrial machinery, can interfere with a person's right to enjoy their home.
• Pollution: Smoke, dust, or chemicals emitted from a neighboring property may invade the air or water on another person’s land, causing damage to their health or property.
• Odors: Persistent and offensive odors emanating from a nearby business, such as a factory or landfill, can also constitute a private nuisance.

To succeed in a private nuisance claim, the plaintiff must demonstrate that the interference was substantial and unreasonable. Factors such as the nature of the interference, the duration, and the character of the locality (e.g., residential vs. industrial area) will be considered.

Public Nuisance:

Public nuisance involves harm or inconvenience to the public or a large number of people. It can affect the rights of the community as a whole rather than just one individual or a small group. Public nuisance typically involves actions or omissions that affect public health, safety, or the enjoyment of public spaces.

Examples of public nuisance include:

• Blocking a public road or walkway.
• Disposing of hazardous waste in a public space.
• Operating a business that creates excessive noise in a residential area.

Unlike private nuisance, public nuisance can be addressed by public authorities, such as local governments, and individuals who are specifically affected by the nuisance. For example, a person living near a public park where illegal activities occur (e.g., excessive noise) may file a lawsuit if they can show that their enjoyment of their property is affected.

Interference with Enjoyment of Land:

Nuisance can also occur when one party’s actions impact another party’s use and enjoyment of their land, even if it doesn’t cause direct harm. For instance, spraying chemicals on one piece of land that then reaches an adjacent landowner's property, contaminating their air or water, may constitute nuisance. This type of interference can affect the plaintiff’s ability to use their property for its intended purposes (e.g., farming, recreational use).

The interference must be substantial enough to negatively affect the plaintiff's ability to use their property without significant inconvenience. For example, if chemicals from a neighboring farm drift onto a residential property and ruin a garden, the homeowner may be able to claim nuisance.

Limitation Period:

A Limitation Period refers to the legal time frame within which a claim can be initiated for torts (wrongful acts) or breach of contract. If a claim is made after this period, it is considered "statute-barred," meaning it can no longer be pursued in court.

The time period begins from when the "cause of action" arises. This typically starts when the damage or issue is first discovered or should have reasonably been discovered through due diligence. This is particularly important for engineers, as issues may not always be immediately apparent.

Discoverability:

Discoverability refers to the principle that the limitation period begins when the damage is discovered or could have been discovered with reasonable effort.

Case: City of Kamloops vs Nielson, 1984):

Before the case of City of Kamloops v. Nielson in 1984, there was no final longstop date, meaning a claim could theoretically be made years after the service or damage. This posed risks for engineering firms, where liabilities could be claimed many years after the work was completed. Following this case, new legislation was enacted to provide more clarity and certainty regarding the limitation period.

Limitation Act 2002:

This act defines the time limits for legal action, aiming to balance the rights of those who have suffered damages with the need for certainty and fairness.

• Basic Limitation Period: Generally, claims must be initiated within two years of discovering the damage or breach (either for tort or contract).
• Ultimate Limitation Period: This is a final cut-off of 15 years from the date of the event (the act or omission) that caused the claim. After 15 years, no claim can be made, regardless of the circumstances.
• Precedence of the Act: If an agreement stipulates a different limitation period, the Limitation Act will take precedence, ensuring consistency.

For engineers, this is particularly relevant as they may face potential claims years later. Protection through liability insurance is vital, as it ensures that engineers are covered even if claims are made well after the work was completed.

2006 Amendment:

The 2006 amendment introduced more flexibility in business agreements and handling limitation periods.

• Business Agreements: This amendment allows agreements between businesses to shorten or extend the limitation period, though this must be done with certain restrictions.
• Consumer Agreements: The limitation period in consumer agreements cannot be altered as easily. A key point is that the limitation period does not run if the damage or injury was deliberately concealed.
• Suspension of Limitation Period: The limitation period can be suspended in some cases, such as if the claim is only discovered later, ensuring fairness for claimants who couldn't have reasonably discovered the issue earlier.

Business Agreements vs. Consumer Agreements:

• Business Agreements are those between two businesses (e.g., contractors, suppliers, service providers), and parties in such agreements can negotiate different limitation periods within the framework of the Limitation Act.
• Consumer Agreements refer to agreements between businesses and individuals (e.g., clients), where the limitation period is usually more rigid and not as negotiable.

Concurrent Liability in Contract and Tort:

Concurrent Liability arises when an engineer or any professional is found guilty of both a breach of contract and tort (negligence or wrongful act) simultaneously. This concept is particularly relevant in the context of professional engineering, where an engineer’s actions or omissions may lead to legal claims under both contractual obligations and tort law.

In Contract: In the case of breach of contract, the limitation period is typically 6 years, starting from the date of the breach, not from when the breach or damage was discovered. Suppose an engineer fails to meet contractual terms, such as delivering services or results within the agreed specifications. In that case, the clock for filing a claim starts ticking from the moment the breach occurs, regardless of when it was discovered.

In Tort: In cases of tort (such as negligence), the limitation period is 6 years as well, but it starts when the damage is first detected. In other words, a claim in tort can be filed only after the injured party becomes aware of the damage or injury or when it should reasonably have been discovered through due diligence. For engineers, this may include cases where faulty design or construction is only noticed after the project is completed, or when latent defects emerge.

Case Study: Dominion Chase Ltd.:

The Dominion Chase Ltd. case provides a practical example of concurrent liability in the context of engineering contracts and tort law. In this case, Dominion Chase Ltd. (the owner) entered into separate contracts with both a contractor and an engineer for the construction of a factory. However, the factory roof developed significant leaks, raising legal concerns regarding both parties' responsibilities.

Trial Judge’s Decision:

• The contractor’s contract with the owner had ended after the guarantee period expired, and thus the contractor was not directly liable for further repairs under the contract.
• The engineer's contract, however, did not have such a limitation, which meant that the engineer could still be held responsible for the failure of the design or oversight related to the leaking roof.
• Despite the contractor's contract ending, the Trial Judge held the engineer fully responsible for breach of contract, allocating 100% liability to the engineer. The contractor, who was still under tort for negligence, was deemed to have caused 75% of the damage to the engineer, but only 25% for breach of contract with the owner.

Court of Appeal:

• The Court of Appeal reversed the Trial Judge’s decision, concluding that both the engineer and contractor could be held liable for both contractual breaches and tortious negligence.
• The contractor, although found liable under tort, was not required to pay the 75% of damages to the engineer. The court reasoned that the contractor’s liability to the engineer should not extend beyond the scope of their negligence.

Supreme Court:

• The Supreme Court upheld the Court of Appeal’s decision, affirming that the contractual relationship between the contractor and the owner shielded the contractor from paying damages to the engineer. The judgment emphasized that while the contractor was liable for negligence in tort, the absence of an explicit contractual relationship between the contractor and the engineer meant that the contractor’s financial responsibility to the engineer was limited.

Key Takeaways:

• Concurrent Liability means that an engineer may face legal claims both for breach of contract and for tort (negligence), with separate limitation periods for each type of claim.
• Contractual liability generally focuses on the specific terms and conditions agreed upon between parties. In contrast, tort liability focuses on harm caused by negligence or wrongful acts, and it may have a different starting point for the limitation period.
• The Dominion Chase Ltd. case highlights how both breach of contract and tortious negligence can coexist, and how the courts navigate the allocation of responsibility between the contractor, engineer, and the owner based on the specifics of their contracts and legal relationships.

Practical Implications for Engineers:

• Engineers should be aware of the possibility of concurrent liability in their professional practice, especially in projects where both contract terms and the duty of care (tort) could be at play.
• They must ensure that their contracts are well-defined, including limitation periods and the scope of their responsibilities, to avoid potential claims.
• Engineers should also consider the importance of liability insurance, as they may be exposed to claims that span across both contract and tort law, particularly in cases of negligence, faulty design, or failure to meet contractual obligations.